UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

KENNAN G. DANDAR and DANDAR & DANDAR, P.A., Plaintiffs, v. Case No. 8:12-cv-2477-T-33EAJ CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC., F. WALLACE POPE, JR., JOHNSON POPE BOKOR RUPPEL & BURNS LLP, and DAVID MISCAVIGE, Defendants. _______________________________/

ORDER

This cause comes before the Court in consideration of

Defendants’ Motion for Sanctions (Doc. # 49), filed on

January 24, 2013. Plaintiffs failed to file a response in

opposition to the motion, and the time for Plaintiffs to do

so has expired. Nonetheless, for the reasons that follow,

the Motion is denied.

I. Background

In May of 2004, Plaintiffs Kennan Dandar and Dandar &

Dandar, P.A. entered into a settlement agreement with

Defendant Scientology. In March of 2009, in response to a

perceived breach of that agreement, Scientology filed a

motion to enforce the settlement agreement in the Circuit

Dandar et al v. Church of Scientology Flag Service Organization, Inc. et al Doc. 58

Dockets.Justia.com

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Court for the Sixth Judicial Circuit in and for Pinellas

County, Florida.

On November 26, 2012, after more than three years of

litigation involving Scientology’s motion to enforce the

settlement agreement, the state court held a hearing on the

amount of sanctions to be assessed against Dandar in light

of the breach. In anticipation of the impending hearing on

the amount of sanctions to be imposed against him, Dandar

filed the present action on October 31, 2012, asserting

claims for relief in accordance with 42 U.S.C. § 1983.

Scientology characterizes Dandar’s Section 1983 action as

“a maniacal effort to have this Court prevent the state

circuit court from entering a final judgment for damages

against [him],” and accordingly filed the instant motion

for sanctions under 28 U.S.C. § 1927. (Doc. # 49 at 3).

II. Discussion

“Section 1927 provides that lawyers who multiply court

proceedings vexatiously may be assessed the excess ‘costs’

they create.” Roadway Exp., Inc. v. Piper, 447 U.S. 752,

757 (1980). Specifically, the statute states:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to

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satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

28 U.S.C. § 1927. “To warrant sanctions pursuant to §

1927, an attorney must (1) ‘engage in unreasonable and

vexatious conduct’; (2) ‘this conduct must multiply the

proceedings’; and (3) ‘the amount of the sanction cannot

exceed the costs occasioned by the objectionable conduct.’”

Young Apts., Inc. v. Town of Jupiter, No. 11-15618, 2013 WL

69215, at *13 (11th Cir. Jan. 7, 2013) (quoting Peer v.

Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010)).

“An attorney multiplies the proceedings unreasonably

and vexatiously only when the attorney’s conduct is so

egregious that it is tantamount to bad faith, which turns

on the objective conduct of the attorney.” Town of

Jupiter, 2013 WL 69215, at *13 (internal quotations

omitted). “Bad faith is an objective standard that is

satisfied when an attorney knowingly or recklessly pursues

a frivolous claim or engages in litigation tactics that

needlessly obstruct the litigation of non-frivolous

claims.” Id. (internal quotation omitted).

Defendants complain that Dandar has “filed three

almost identical complaints alleging purported civil rights

claims against the Defendants[,] [and Dandar has] twice

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moved for an emergency temporary injunction on the same

grounds.” (Doc. # 49 at 6). To support their argument in

favor of imposing sanctions, Defendants reference Religious

Technology Center v. Liebreich, 98 F. App’x 979 (5th Cir.

2004), in which the Fifth Circuit commented that “the

Dandars’ continued engagement in improper motion practice

after repeated warnings by the district court was reckless

disregard of the duty they owed to the court. Such conduct

is unreasonable and vexatious beyond cavil, and therefore

warrants § 1927 sanctions.” Id. at 984.

However, the Court finds Dandar’s conduct in the

present matter distinguishable from Dandar’s apparent

engagement in “improper motion practice” in Liebreich. In

the instant case, Dandar has filed two amended complaints

(the second amended complaint filed with leave of Court),

and two motions for preliminary injunction. (Doc. ## 2,

24, 25, 45). The Court has issued no warning to Dandar

regarding any vexatious or unreasonable practice, and

although Dandar’s motions for preliminary injunction were

ultimately unsuccessful, the Court finds that Dandar’s

prosecution of this action has not constituted egregious

conduct tantamount to bad faith. The Court therefore

declines to award sanctions under Section 1927.

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Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

Defendants’ Motion for Sanctions (Doc. # 49) is

DENIED.

DONE and ORDERED in Chambers in Tampa, Florida, this

15th day of February, 2013.

Copies: All Counsel of Record.